South Africa's Dilemma: Immunity Laws, International Obligations, and the Visit by Sudan's President Omar Al Bashir

Article excerpt

I. Introduction and Background

In January 2015, the South African government agreed to host the African Union Summit to be held in June of the same year.1 This meant the Heads of State and other senior government officials would attend this Summit. Amongst those who would attend was Sudan's President Omar Hassan Ahmad Al Bashir, who is wanted by the International Criminal Court ("ICC").2 He is alleged to have committed international crimes which include five counts of crimes against humanity (murder, extermination, forcible transfer, torture, and rape); two counts of war crimes (intentionally directing attacks against a civilian population or against individual civilians not taking part in the hostilities and pillaging); and three counts of genocide (genocide by killing, genocide by causing serious bodily or mental harm, and genocide by deliberately inflicting on each target group conditions calculated to bring about the group's physical destruction).3

sudan is not a party to the Rome statute, which established the ICC4 Ordinarily, the ICC is expected to investigate and prosecute persons for matters that come from states that have ratified the Rome Statute ("states parties") as rules of international law so require.5 However, states parties to the Rome statute included a provision which gives the United Nations ("UN") Security Council the power to refer a situation that threatens international peace and security to the ICC for investigation and possible prosecution.6 This provision serves as a jurisdictional trigger mechanism for the ICC to investigate and prosecute nationals of a non-party state to the Rome Statute.7 This means that situations originating from non-party states to the Rome Statute may be investigated and prosecuted by the ICC as evidenced by the situations in Darfur, Sudan,8 and Libya.9 In the case of Sudan, the Security Council referred the Darfur situation to the ICC Prosecutor10 based on the recommendation of the International Commission on Violations of International Humanitarian Law and Human Rights Law in Darfur.11 The International Commission of Inquiry established that the government forces of Sudan and the militias committed widespread acts which could amount to crimes against humanity. These acts included rape and other forms of sexual violence, destruction of villages, torture, killings of civilians, and forced pillages.12 Based on this report by the International Commission of Inquiry, the Security Council determined that there was a continuous threat to international peace and security in Darfur. These findings caused the Security Council to refer the situation to the ICC acting under Chapter VII of the UN Charter as evidenced by UN Security Council Resolution 1593.13

The ICC Prosecutor investigated the Darfur situation to determine whether there was a reasonable basis to proceed with the investigation.14 Once the Prosecutor was satisfied that there was a reasonable basis to proceed with the investigation, an application was made to the ICC PreTrial Chamber15 to issue a warrant for President Al Bashir's arrest.16 After examining the material brought by the Prosecutor, the Pre-Trial Chamber was satisfied that "there are reasonable grounds to believe that Omar Al Bashir is criminally responsible . . . as an indirect perpetrator or as an indirect co-perpetrator for those war crimes and crimes against humanity for which the Chamber has already found in the present decision that there are reasonable grounds to believe that they were directly committed."17 The Pre-Trial Chamber subsequently issued the arrest warrant against President Al Bashir.18 The Pre-Trial Chamber also requested the states parties and non-party states cooperate with the iCC by arresting and surrendering President Al Bashir to the iCC if he was apprehended in their respective territories.19

upon learning that President Al Bashir was in south Africa, the Southern African Litigation Centre20 approached the High Court of South Africa21 to ensure that the south African government would abide by its international obligations, and arrest and surrender President Al Bashir to the ICC. …